How Driver History (And Other Factors) Can Limit Injury Claims

By | November 2, 2016

In personal injury claims, many drivers and passengers are unaware of factors that can increase their personal liability, and reduce the legal liability of the insurer. The assumption that many consumers share is that injury will be compensated at a rate that is proportionate to pain, suffering and the cost of medical expenses and therapies.  

Personal injury litigators know through experience, that there are many loopholes and opportunities for insurers to reduce the value of the settlement. Naturally, little is done to educate the public before an accident has occurred; understandably it is within the insurers best interest to plead these exemptions to save thousands, if not millions on a settlement, or class action suit.

Legal professionals however, should take every opportunity to inform the public about caveats that can significantly reduce personal injury settlements, to offset the popularized notion that every injury case will result in large compensation amounts. We will demonstrate the factors that reduce insurer liability and settlement amounts.

Previous Personal Injury Settlements 

According to the Insurance Information Institute, about 90 Americans die every day in a motor vehicle collision, but 6,400 people are injured daily.  In a 2014 report from the National Highway Traffic Safety Administration (NHTSA) 2.3 million people were injured in motor vehicle crashes.  While the fatality rate per 100 million people fell to 1.07 in 2014, the amount of injuries increases on an annual basis.  Visit the NHTSA website for an interesting map of motor vehicle collisions by state.

Multiple Past Claims and Settlements

The legal process of undergoing a personal injury lawsuit is arduous, no matter how big or small the loss.  While fraud is a factor in a small percentage of cases, it can be difficult to fathom individuals who would go through the personal injury process as a claimant more than once.  But statistically, there is a high probability for accident victims to become repeat claimants.

What happens when a personal injury claimant has a second accident?  If a settlement was reached in the first injury claim for physical loss, income and medical reimbursement, determining the value of a second personal injury claim may be complicated.  The legal team for the injured will have to present new injuries that were not present before the most recent collision, and limit the loss estimate to measure how the second accident presented new injuries.  There is limited potential for lawyers to plead on the grounds that a second accident exacerbated symptoms.

Bankruptcy Will Impact Personal Injury Settlements

While driver history has a mild impact on successfully receiving a settlement for physical or emotional loss, there are many other ways that a claimant’s personal injury settlement can be compromised.   As a general rule, avoid taking other unrelated legal action while your injury claim is underway, to prevent adjusted settlements or complications.

Why would an individual file for personal bankruptcy, if they were proceeding with a personal injury lawsuit and claim?  When you take a closer look, it makes practical sense.  According to the Chicago Injury Center, when the dominant breadwinner in the family has become injured and unemployable, family finances become can quickly become precarious.   Savings, investments and bonds and other liquid assets may be utilized, before the family begins to experience serious economic hardship, turning to short-term lending or credit cards for financial needs.

Very few people realize that personal injury cases can take years to resolve, during which time the family of the injured, or the household, will incur what are sometimes unmanageable and uninsured expenses.

These expenses may include:

  • Medical bills.
  • Physiotherapy treatment.
  • Prescription medications.
  • Assistive devices or in-home modifications.
  • Expenses of daily living.

The declaration of bankruptcy is an effort to protect assets, and to provide relief.  It may also be considered as an attempt to protect a personal injury settlement from being claimed by creditors.  However, failing to list an injury claim as an asset (or potential income) in bankruptcy proceedings is illegal.  It can result in the injury claim being barred, according to the “equitable doctrine of judicial estoppel”, which would allow the bankruptcy case to be reopened, and allow creditors to petition for the funds received by the claimant in the personal injury settlement.

If a bankruptcy is pending before a personal injury claim commences, the lawyer representing the personal injury case will be hired by the bankruptcy trustee.  The lawyer will also require approval by the bankruptcy court, as recovery funds (settlements) are named an asset of the estate in bankruptcy proceedings.

Negligence and Post-Injury Inaction 

There are three other circumstances that are a direct result of the action (or in some cases, inaction) conducted by the injured after a motor vehicle collision.

  • Comparative Negligence:  When the claimant or injured is fully or partially at fault for the accident that caused the injuries.   In cases where the injured is at fault, an estimate percentage or calculation of fault is applied to determine what percentage of the expected damage award will be provided.
  • Contributory Negligence:  This stipulation exists in only a few U.S. states, but outlines that in personal injury lawsuits, injured claimants may not be entitled to any compensation, if they are deemed fully, or partially at fault for the accident.
  • Mitigation of Injury: Individuals who sustain injury in an accident are required to take reasonable “next steps” to ensure that they are evaluated by a physician, and begin engaging in therapeutic care and medical supervision.  The intention is to not only address the physical symptoms of the injury, but also to ensure that the injuries do not exacerbate in time, if left untreated.   Claimants who do not engage in their “due diligence” in this regard can find their damage award greatly reduced.

Immediately following any kind of accident, it is critical to receive medical care and evaluation, and to consult with a personal injury lawyer.  A lawyer who is experienced with handling personal injury cases will be able to advise you, and help protect your right to claim legal damages for your loss.

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